|
Advanced Search Options
IBC - Case Laws
Showing 321 to 340 of 779 Records
-
2023 (8) TMI 176
Search and seizure of records of the corporate debtor and issuance of summons to applicant/resolution profession during moratorium period - HELD THAT:- The Karnataka High Court in Associate Décor Limited Rep. by Resolution professional vs Deputy Commissioner of Commercial Taxes [2021 (12) TMI 1408 - KARNATAKA HIGH COURT], after referring Apex court citations held that the notice issued under section 65 the State Goods and Services Tax Act 2017, R/w Rule 101(4) of KGST Rule, informing the discrepancies found in audit and asked the registered person to submit reply, is hit by mortarium order passed under section 14 of IBC 2016 and stayed/kept in abeyance, the proceedings pursuant to the said impugned notice till the lifting of moratorium.
The Government of India, Ministry of Finance, finance Department also issued Circular No.134/04/2020-GST under section 168(1) CGST Act, Annexure A1 of the petition explaining that no coercive action to be taken in respect of dues of GST pertaining to corporate debtor, under the CIRP. The respondent despite the supra guidance taken the coercive action - the acts of the respondent undermined the authority of Resolution professional and because of seizure of Books of accounts of the corporate debtor causes much inconvenience and paralyzed the Resolution process, the same shall be completed in time bound manner.
In the circumstances it is concluded that the search and seizure of records of the corporate debtor and issuance summons to applicant/resolution profession are violative of mortarium order passed under section 14 of IBC, 2016 - the respondent are directed to return all the records seized from the premises of the corporate debtor mentioned in seizure mahazar - summon dated 13.03.2023 issued by the respondent to the corporate debtor is hereby set aside - respondent is hereby directed to pay a compensatory cost of Rs.50,000/- to the applicant towards the CIRP cost.
Petition allowed.
-
2023 (8) TMI 61
Rejection of application filed u/s 9 of IBC - existence of dispute - relevancy of settlement entered into between the parties on 19.03.2018 - all dues prior to that stood paid and there were only two invoices after the said date and dispute has been raised regarding them - Operational Creditors - HELD THAT:- The Demand Notice was issued on 19.05.2019 was received by the Corporate Debtor on 23.05.2019 and reply to the Demand Notice was sent on 27.05.2019, which is part of the Section 9 application of the Appellant, appearing at page no.298 of the paper book. The Corporate Debtor in the reply to the Demand Notice has refuted the claim of the Appellant as frivolous and baseless. The Corporate Debtor in the reply has given details of the work and the minutes dated 02.02.2018 and agreement which was entered on 10.02.2018 and signed on 19.03.2018.
With regard to invoices which were issued subsequent to agreement between the parties’ details have been given by the Corporate Debtor. It was pleaded that the Operational Creditor was obliged to issue Credit Notes with regard to amount of Rs.12,58,782/-, which was never issued. With regard to settlement which was forwarded by the Corporate Debtor it has been pleaded in the reply that settlement was withdrawn subsequently by Corporate Debtor and the Operational Creditor owes an amount to the Corporate Debtor.
When Demand Notice issued under Section 8 is replied by the Corporate Debtor, which is notice of dispute raising the dispute regarding claim of the Appellant, the Adjudicating Authority has rightly not proceeded to admit the Section 9 application - Details which were reflected in the reply to notice of demand clearly indicate that there was genuine dispute regarding the claim of the Appellant, which cannot be decided in a Section 9 proceeding.
There are no fault with the order of the Adjudicating Authority rejecting Section 9 application - appeal dismissed.
-
2023 (8) TMI 13
Removal of appellant from Committee of Creditors - Financial Creditors or not - HELD THAT:- The judgement of this Tribunal in Namdeo Ramchandra Patil & Ors. [2022 (9) TMI 906 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] fully covers the issues and Adjudicating Authority has rightly referred to the Judgement holding that Appellant is not a financial creditor - The terms and conditions of development agreement entered between the appellant and the corporate debtor, Annexure 6 makes it clear that the appellant was a collaborator in the development agreement and not a financial creditor. There was no disbursement for time value of money by the appellant within meaning of Section 5(8) of the IBC.
There are no error in the order impugned. The Appeal is dismissed.
-
2023 (8) TMI 1
Approval of Resolution Plan - seeking injunction be passed restraining the respondents either by himself and/or his men or agents or assigns or otherwise howsoever from taking any step or further steps - HELD THAT:- In the present case, primarily it is satisfying that conduct of the appellants in both the appeals is not transparent - It is also noticed that more than Rs.57 crores with interest was outstanding. The principal borrowers’ account was declared NPA on 10.03.2017. Charge in respect of entire land of the Corporate Debtor was created in favour of financial creditor i.e. Vijaya Bank. Even thereafter one of the directors of the appellant namely Mr. Harshvardhan Tantia of Company Appeal (AT)(Ins) No.861/2022 who was also having 6.22% shares holding in the Corporate Debtor company entered into lease agreement on 27.07.2014 with CD in respect of major portion of the land of the Corporate Debtor. The lease agreement was signed by Mr. Jaydeep Ghosh on behalf of the Corporate Debtor and Mr. Harshvardhan Tantia signed as one of the directors of T-RMC Pvt Ltd who is appellant in Company Appeal (AT)(Ins) No.861/2022. The lease agreement dated 27.07.2014 was for a period of five years which was to end on 26.7.2019. It is mandatory that if a tenancy is created on the basis of an agreement/lease agreement for one year or more then the said deed is required to be registered.
The law is settled on the point that the suspended Board of Directors have got no locus to file an appeal against the approval of the plan by CoC and finally approved by the Adjudicating Authority and as such Company Appeal (AT)(Ins) No.839/2022 is liable to be rejected on this sole ground besides the facts relating to fraudulent lease rent agreement which we have noticed hereinabove. So far as plea taken on behalf of the appellant in Company appeal (AT)(Ins) No.861/2022 that change of business of the Corporate Debtor was not permissible.
Section 5(26) of the IBC permits a resolution plan that entails restructuring. Similarly Regulation 37(ba) also permits restructuring, whereas Regulations 37(a)and (b) even permit for transfer of all or part of the assets and also sale of all or part of the assets of the CD. Only requirement is to see whether situation permits to do the same in the interest of the concerned creditors - In the present case it has been noticed that CD was not doing any business. Licence for running the factory had lapsed and not renewed for several years. There was no insurance of the factory premises since several years and even Insurance Company has refused to insure such factory/plant. It has also been noticed that for several years municipal tax were not paid by the CD. Even during CIRP the factory was non- operational.
It is opined that it was commercial wisdom of the CoC to accept the plan which has been noticed by way of change of the business of the CD. It has already been held that an unsuccessful resolution plan applicant has got no vested right and also settled that acceptance of plan is commercial wisdom of the CoC. Accordingly, there is no reason to entertain both the appeals particularly in view of the fact that the plan has finally been approved by Adjudicating Authority.
Thus, creation of aforesaid two doubtful and suspicious lease agreements which have been used in the court proceeding to defeat the objective of IBC, requires enquiry - appeal dismissed.
-
2023 (7) TMI 1567
Preferential transactions - Substitution of the Successful Resolution Applicant (SRA) in place of the Administrator for prosecuting applications under Sections 43 and 44 of the Insolvency and Bankruptcy Code (I&B Code) - HELD THAT:- The fact is that the application under Section 43 and 44 were filed against the Appellant subsequent to approval of the Resolution Plan which fact is not disputed. In the judgment APIL WADHAWAN VERSUS PIRAMAL CAPITAL & HOUSING FINANCE LTD. & ORS. [2023 (5) TMI 663 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI], the question as to whether with regard to applications filed subsequent to approval of the plan by the Successful Resolution Applicant can be prosecuted, was considered and it was held that 'The submission which has been pressed by the learned Counsel for the Appellant is that avoidance applications, which were filed after approval of the Resolution Plan by the CoC, could not have been entertained. In the Code and the Regulations, there are no such provisions, which indicate that avoidance application filed after approval of the Plan by the CoC is to be rejected or not. It depends on the facts of each case and circumstances as to whether any application filed after approval of the Resolution Plan by the CoC can be considered or not. In the present case, we noticed that Resolution Plan has noted the pending avoidance applications.'
With regard to application filed subsequent to approval of plan by the CoC substitution of Successful Resolution Applicant in place of the Administrator was approved by NCLT which was also upheld by this Appellate Tribunal - In this case, the submission of learned counsel for the Appellant is that the transaction which have assailed against Appellant are on different footing and not impugned under Section 66, hence, they were required to be objectively considered by the Adjudicating Authority and it was only Administrator who could have objectively prosecuted.
Conclusion - The substitution of the SRA in place of the Administrator upheld.
Appeal disposed off.
-
2023 (7) TMI 1565
Principles of natural justice - submission of appellant is that one more opportunity ought to have been given to the Appellant for final argument, which were not advanced on 26.06.2023 due to unavailability of arguing counsel - HELD THAT:- The order having already reserved by the Adjudicating Authority and request of the Appellant for setting aside order dated 26.06.2023 having been refused, we are of the view that the Appellate Court cannot issue a direction to the Adjudicating Authority, in facts of the present case, for rehearing. Appellant has already filed its Reply and Written Submission, which was permitted by the Adjudicating Authority. There are no reason that reply and written submission shall not be considered by the Adjudicating Authority while pronouncing the order.
Appeal dismissed.
-
2023 (7) TMI 1531
In the case before the Rajasthan High Court, presided over by Hon'ble Mr. Justice Inderjeet Singh, the petitioner, represented by Mr. R.D. Rastogi, ASG, argued against the jurisdiction of the National Company Law Tribunal (NCLT) Mumbai Bench regarding a matter under the Prevention of Money Laundering Act (PMLA). The petitioner cited precedents from the Delhi High Court (Rajiv Chakraberty Resolution Professional of EEIL Vs. Directorate of Enforcement, 2022 SCC Online DEL 3703) and the Madras High Court (Deputy Director, ED Vs. Asset Reconstruction Company, 2020 SCC Online MAD 28090) to support their position. The petitioner contended that the proceedings under the PMLA are pending before the PMLA Appellate Tribunal, which has already issued a status quo order concerning the disputed property. The petitioner also noted that a previous writ petition (D.B. Civil Writ Petition No. 18091/2019) was dismissed as withdrawn, and the respondents approached the NCLT Mumbai Bench without including the petitioner, despite the proceedings being registered in Jaipur. Consequently, the court issued a notice to the respondents, returnable in six weeks, and stayed the operation of the NCLT Mumbai order dated 24.02.2022 and any further proceedings related to it.
-
2023 (7) TMI 1520
The Appellate Tribunal allowed the Appellant's claim as not time-barred based on a Supreme Court ruling. Notice issued to Respondents for filing replies. The Appeal C.A. (AT) Ins. No. 913 of 2023 was dismissed as withdrawn to focus on another related case.
-
2023 (7) TMI 1508
Admissibility of application filed after the approval of the Resolution Plan - appeal filed under Section 61 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Resolution Plan was finally approved long back on 05.03.2020 and thereafter application was filed by the Appellant under Section 60(5), 9 of Insolvency and Bankruptcy Code, 2016. It was filed after expiry of several months from the date of approval of the Resolution Plan by the Adjudicating Authority which was subsequently approved by this Appellate Tribunal also. In such situation, it is opined that Ld. NCLT was not required to entertain such application.
Both the parties have agreed on the point that this appeal can be disposed of with indication that any observation recorded by the NCLT in its order dated 28.01.2022 may not come in way in pursuing legal remedy by either of the parties in accordance with law.
Accordingly, with the consent of both the parties the appeal stands disposed of with indication that any observation recorded by Ld. NCLT in its order dated 28.01.2022 may not come in way in pursuing legal remedy by either of the parties in accordance with law.
-
2023 (7) TMI 1497
Tenability of the application - Nomination of an arbitrator on behalf of the Respondent in terms of the Transaction Documents - HELD THAT:- There are no merit in the submission of Respondent that the document is not adequately stamped and therefore, an arbitration clause contained in the said agreement cannot be acted upon. Apart from this, it would be sufficient to note that the stamp duty will have to be determined on the basis of the transaction and its value indicated in the instrument and not on the prospective value as Section 21 of the Maharashtra Stamp Act, clearly prescribe that when an instrument is chargeable with ad-valorem duty in respect of any stock, or of any marketable or other security, such duty shall be calculated on the value of such stock or security according to the average price or value thereof, on the day of execution of the instrument.
The instrument/ document in question dated 12/04/2018, which is the basis for invoking arbitration is affixed with adequate stamp duty and suffers from no legal infirmity.
In the wake of the existing arbitration clause in the agreement dated 18/04/2018 and since arbitration has been invoked by the applicant by appointing his nominee and the respondents having been called upon to appoint theirs, the applicant seek appointment of the nominee arbitrator on behalf of the respondent so that the two arbitrators so appointed shall nominate the third arbitrator.
At this stage, learned counsel for the respondent seek stay of the judgment pronounced today, which must be necessarily declined, since the matter is considered on merits and found the preliminary objection to be untenable and found the circumstances involved justifying the appointment of the nominee arbitrator on behalf of the respondents.
The prayer for stay is rejected.
-
2023 (7) TMI 1484
Seeking admission of this petition - initiation of Corporate Insolvency Resolution Process (CIRP) - Operation Creditor - debt of a sum over rupees one crore due and payable by the respondent exits or not - existence of dispute between the parties or record of pendency of suit or arbitration proceedings filed before the receipt of the Demand Notice of the unpaid operational debt in relation such dispute - Corporate Debtor is a profit making company having turnover of Rs. 300 crore for the last five financial years - default of mere Rs. 1.31 crores can be a ground to initiate CIRP?
Whether the documentary evidence furnished with the application shows that the operational debt of a sum over rupees one crore due and payable by the respondent exists? If so, whether the respondent defaulted in payment of the same? - HELD THAT:- Indisputably, in respect of the invoices under which payment has been claimed by the petitioner/operational creditor, the receipt of which has been acknowledged by the respondent, GST has been paid by the petitioner on all these invoices. That apart, part payment in respect of some of these invoices has even been made by the respondent through pre-arrangement of LCs, post claim of audit of the records by the respondent. The Petitioner also enclosed e way bills in respect the goods supplied under the said invoices. The contention of the Petitioner that the respondent had claimed credit input pursuant to filing GST R1 by the Petitioner/operational creditor, is not disputed by the respondent.
It is strange that, when it is the case of the Petitioner that the supplies under the invoices were genuinely made after making paying GST, accompanied by e-way bills and the delivery challans, the least that is expected from the respondent which is disputing these invoices is to exercise its statutory right of raising a dispute before the Authorities under the GST, Act stating that the said invoices are fake by submitting GST R-3, so that, the genuineness or otherwise of the subject invoices would have been decided.
The Petitioner has established clearly the existence of an operational debt of a sum over rupees one crore due and payable by the respondent and that the same is not paid.
Whether there is existence of dispute between the parties or record of pendency of suit or arbitration proceedings filed before the receipt of the Demand Notice of the unpaid operational debt in relation such dispute? - HELD THAT:- There is no bar under the law that merely because the Corporate Debtor failed to raise the dispute before the receipt of the demand notice, he shall not raise such dispute in the reply/ counter.
It is pertinent to note that when it is the case of the petitioner that the supplies under the invoices were genuinely made after making GST payments accompanied by e-way bills and delivery challans the least that is expected from the Corporate Debtor which is vehemently disputing the invoices is raising a dispute before GST Authorities by submitting GST R-3 to the authorities, so that the genuineness or otherwise of the subject invoices would have been decided by the competent authority under the GST Act. Instead, the respondent lodged an FIR post receipt of Demand Notice, and by placing reliance on the FIR as well as the investigation officer’s report, has been contending that there is a pre-existing dispute, which cannot be accepted in preference to the record submitted by the Petitioner, which record has not been disputed until the reply to the demand notice.
The plea of pre-existing dispute is spurious, hypothetical, illusory, non-existing and an assertion of fact unsupported by any evidence, the same is rejected.
Petition allowed.
-
2023 (7) TMI 1483
Admission of Corporate Debtor into Corporate Insolvency Resolution Process - imposition of moratorium - HELD THAT:- In the event the claim is settled between the parties or the order therein is set aside, the Operational Creditor, is at liberty to approach this court for revival of its claim as per the provisions of the code.
With these observations this CP is disposed of.
-
2023 (7) TMI 1431
Dismissal of section 10A application - it was held by NCLAT that 'the application under Section 7 filed by the Financial Creditor was not hit by Section 10A.'
HELD THAT:- There are no good ground and reason to interfere with the impugned judgment and hence, the civil appeal is dismissed.
-
2023 (7) TMI 1407
Seeking direction to IRP to reconstitute the CoC of the Corporate Debtor by including the Appellant as Financial Creditor - genuinity of claims filed by the Appellant - Assignment Deeds were not brought on the record inspite of direction - HELD THAT:- There are sufficient substance in submissions of learned counsel for the Respondent No.2 that Corporate Debtor being aware of the insolvency resolution process mentioned assignment in favour of the Appellant to put the Appellant in the CIRP of the Corporate Debtor in event it is initiated, to take control of the CIRP. As noted above, in the balance sheet of the Appellant no such dues payable by Corporate Debtor has been mentioned on the basis of any of the three assignments, as claimed before the Resolution Professional. In the balance sheet of the Assignor Company also there was no mention of the aforesaid dues against the Corporate Debtor before they were assigned to the Appellant. Non-reflection of amounts in the financial accounts of either of the Assignor or the Assignee creates substantial doubt in the case of the Appellant.
Looking to the facts and circumstance and the manner in which the claim has been put up by the Appellant, the opinion of the Adjudicating Authority agreed upon that all three transactions are sham and the matter needs to be examined by appropriate authority to prevent misuse of the forum and defeat the objectives of the Code.
The Adjudicating Authority after considering in detail the entire facts and circumstances and material on record has rightly come to the conclusion that none of the claim submitted by the Appellant in Form C could have been admitted in the CIRP of the Corporate Debtor. Claims submitted by the Appellant were all non-genuine claim and have rightly been rejected.
The Adjudicating Authority has rightly directed the Resolution Professional to send all related papers received from the Applicant, Financial Creditors, Documents in his possession and details of such transactions to the Ministry of Corporate Affairs for examination/ investigation - there are no merit in the Appeal.
Appeal is dismissed.
-
2023 (7) TMI 1400
Continuation or stay in the liquidation order of the Corporate Debtor - eligibility under Section 29A of the IBC to submit a resolution plan - resolution plan unilaterally - manner of rejection of the resolution plan can be deemed to have been marred by material irregularity in the conduct of CIRP of the Corporate Debtor by the RP or not - HELD THAT:- After due deliberations, it is the CoC members who advised the RP that only Section 29A compliant plan should be placed before CoC for consideration and voting. Given that CoC had decided that only Section 29A compliant resolution plan can be placed for consideration of CoC members and further that the CoC had sought the opinion of the RP on the Section 29A eligibility of Epitome, it cannot be said that the RP had exceeded his jurisdiction or had acted unilaterally or that RP had supplanted the commercial wisdom of the CoC. Further, the fact that the RP had opined that the Appellant was not eligible in terms of Section 29A criteria cannot be held against the RP simply because the opinion of the RP did not suit the interest of the Appellant - Further it is the CoC which took the decision to intimate the decision of the RP to Epitome which the RP carried out dutifully vide their email dated 16.07.2021. It is significant to note that the 29th CoC meeting was held on 15.07.2021 which pre- dated the letter from the RP to the Appellant informing them about their ineligibility which was dated 16.07.2021. Thus what was conveyed by the RP to the Appellant also clearly had the sanction of the CoC.
It is also noticed that it was the CoC which had directed the RP to give his opinion on the Section 29A compliance of the Appellant and in terms of the IBC, the RP was duty-bound to give his views to the CoC. The CoC members having seconded the RPs opinion after due consideration of all facts presented before it by the RP, it can be safely inferred that this acquired the character of being the final and determinative opinion of the CoC based on the exercise of its own commercial wisdom and definitely not one which was foisted upon the CoC by the RP unilaterally. Thus there is no basis for holding this action on the part of the RP to be in breach of the settled proposition of law.
There are no hesitation in holding that there is no substance in the contention of the Appellant that the RP had usurped the role of the CoC in rejecting the resolution plan of the Appellant and in suo motu determining ineligibility of the Appellant in terms of Section 29A of IBC. It was the CoC which had requested the RP to field his views on the Section 29A eligibility of the Appellant. Thus in giving the prima facie opinion as to whether the Appellant was Section 29A compliant or not, the RP did not tender the opinion on his own volition but on the specific directions and on behest of the members of the CoC.
Whether the liquidation order passed by the Adjudicating Authority should be allowed to be completed or be set aside? - HELD THAT:- Both Epitome, the Appellant in the first appeal and Sanghathan, the Appellant in the second appeal have contended that the liquidation order passed by the Adjudicating Authority should be set aside on grounds of the alleged material irregularities in the CIRP of the Corporate Debtor.
The RP cannot be said to have exceeded the powers vested upon it by the IBC. It is reiterated that there is no sound basis to the claim of the Appellant that the RP unilaterally rejected the resolution plan leading to material irregularity in the CIRP of the Corporate Debtor. It was a duly considered and unanimous decision of the CoC not to put the resolution plan of the Appellant for consideration and voting. Further we notice that the liquidation of the Corporate Debtor was unanimously approved by the CoC with 100% votes in favour of liquidation in the 30th CoC meeting held on 19.07.2021. Prima-facie on this count, no illegality or impropriety can be attributed to CIRP process undertaken by the RP.
The CoC had made all endeavors for resolution of the Corporate Debtor in the first place and had voted upon liquidation only as the last resort. The resolution process has run for more than 3 (three) years before the liquidation resolution was passed by the CoC. Thus reading any ulterior motive behind this decision is misconceived and lacks foundation.
There are no reasons to disagree with the decision of the Adjudicating Authority in passing the liquidation order of the Corporate Debtor as a going concern having been so voted and unanimously recommended by the CoC in the exercise of its commercial wisdom - there are no merit in both the appeals - appeal dismissed.
-
2023 (7) TMI 1397
Rejection of Section 7 Application as barred by Section 10A of IBC - Period of limitation - corporate guarantor defaulted to make payment - Principal Borrower can be made liable for default of corporate guarantor or not - HELD THAT:- When the Financial Creditor has invoked the corporate guarantee of the corporate guarantor by the notice dated 16.10.2020 and asked the corporate guarantor to make the payment within seven days from the receipt of the notice, the default has occurred during the 10A period and the default dated 02.07.2019 which is default alleged against the Principal Borrower can not be put to a default for corporate guarantor. Liability of corporate guarantor although is coextensive of the Principal Borrower but when the Guarantee requires invocation of the guarantee deed, default on the guarantor shall be the date when corporate guarantee has been invoked.
There are no error in the Order of the Adjudicating Authority dismissing Section 7 Application as barred by time - dismissal of Section 7 Application shall not preclude the Appellant to take other recourse in accordance with law - appeal dismissed.
-
2023 (7) TMI 1396
Seeking extension of CIRP beyond the period of 330 days - liquidation of the Corporate Debtor - HELD THAT:- There are no substance in the argument of Appellant because the CoC had time and again extended the period which was allowed by the Adjudicating Authority but two resolution plans in respect of the Corporate Debtor were rejected with the majority of the vote of 91.92% by the CoC and at that time the CoC was aware that 330 days time period in respect of the Corporate Debtor had already been over. Moreover, it has been categorically observed by the Adjudicating Authority that neither any plan was pending nor any application under Section 12A of the Code was pending for their consideration, therefore, the period of CIRP cannot be extended on the flimsy grounds much beyond the period of 330 days as has been held by the Hon’ble Supreme Court in the case of Essar Steels Through Authorised Signatory [2019 (11) TMI 731 - SUPREME COURT].
Therefore, the applications filed for extension of time by the RP has rightly been dismissed and the application filed by the RP for an order of liquidation of the Corporate Debtor has rightly been passed which does not require interference by this Tribunal.
There are no merit in the present appeal and the same is hereby dismissed.
-
2023 (7) TMI 1375
Approval of the Resolution Plan - Adjudicating Authority in the impugned order has refused to approve the plan on the ground that it is in violation of Section 30(2)(e) and (f) of the I&B Code - HELD THAT:- From the facts brought on the record, it is clear that before the Resolution Professional claims were received from two Operational Creditors i.e. State Tax, Government of Gujrat and Central Excise, Government of India. There were statutory dues of also Gujarat Industrial Development Corporation and Surat Municipal Corporation. Claims of the statutory dues were reflected in the Information Memorandum. Under the Resolution Plan payment to Gujarat Industrial Development Corporation and Surat Municipal Corporation to keep the Corporate Debtor as a going concern. There can be no dispute to the law as laid down by the Hon’ble Supreme Court in COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA & OTHERS [2019 (11) TMI 731 - SUPREME COURT] where it was held that there can be differential payment in payment of debts of Financial Creditors and Operational Creditors, however, there can be no difference in interse payment within a class of creditors.
Present is a case where admittedly the claims of two Operational Creditors - State Tax, Government of Gujrat and Central Excise, Government of India were filed as has been admitted by the learned counsel for the Resolution Professional. It was open for the Resolution Applicant not to allocate any amount to any of the Operational Creditor since under Section 53 no entitlement was there in accordance with the total amount available for distribution. However, when the Successful Resolution Applicant was making payment to other two Operation Creditors, there cannot be any discrimination between payment of one class of Creditors.
The ends of justice be served in disposing of this appeal in directing that the amount of Rs.32,78,102/- be distributed to all the four Operational Creditors so as to save the plan from being invalidated - the Adjudicating Authority having found that there is discrimination in payment of Operational Creditors could have directed for compliance of provision of the Code by distribution of Rs.32,78,102/- without affecting the other terms and conditions of the plan. By this modification the plan shall be able to sail and implemented, which is approved by CoC with 99.84% vote share. The plan need to be implemented with modification.
The application filed by the Resolution Professional being is allowed subject to modification that amount of Rs.32,78,102/- shall be distributed on prorata basis between all Operational Creditors.
-
2023 (7) TMI 1370
Maintainability of SLP - Availability of statutory remedy - HELD THAT:- The factual debate must take place before the NCLAT on the application of the law and then would it be only appropriate for this Court to apply its mind against the order of the NCLAT which is also a statutory remedy.
The correct approach would not be to directly entertain the special leave petitions against the orders of the NCLT - appeal dismissed.
-
2023 (7) TMI 1365
Power of Tribunal to review the judgment versus Power to re-call its order - Larger Bench (5 Members) decision - power to entertain an application for recall of judgment on sufficient grounds - It was held by Principal Bench that This Tribunal is not vested with any power to review the judgment, however, in exercise of its inherent jurisdiction this Tribunal can entertain an application for recall of judgment on sufficient grounds - HELD THAT:- The view taken by the Five Judges Bench of the NCLAT not agreed upon and thus there are no reason to interfere with the impugned judgment.
Insofar as the endeavour of learned counsel for the appellant to urge on the facts of the case is concerned, that would be a matter to be considered, dependent on the fate when the matter is placed before the appropriate Bench, to be decided on merits.
Appeal dismissed.
............
|
9911796707
